John M. Ferolito v. Nestle Waters North America, Inc. (2014)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM NESTLE WATERS NORTH AMERICA, INC. DATED JULY 31, 2013 (# 100.31)

This cause of action was filed by the plaintiff, John M. Ferolito, seeking to enforce a Subpoena Duces Tecum as against the defendant, Nestle Waters North America, Inc., pursuant to a Commission issued by New York Supreme Court Justice, Martin J. Schulman in one of four consolidated lawsuits scheduled for trial in the State of New York on January 27, 2014.   The New York lawsuits involve a determination of the value of various entities dealing with AriZona Iced Tea including the manufacture, distribution and sale of various AriZona products.   Two individual parties in the various New York lawsuits are John M. Ferolito and Domenick Vultaggio.   They are each fifty (50%) percent owners of the various AriZona Ice Tea entities.   The essential dispute before this court is the issuance of a subpoena to assist in determining the fair market value of the interest in those entities owned by the plaintiff, John M. Ferolito.   Counsel has noted that this is the largest monetary claim of its nature in the history of New York litigation.

The four lawsuits currently pending and consolidated for the January 27, 2014 trial are;  Ferolito v. AriZona Beverages USA, LLC, Index No. 4058/12 (Nassau County) (Driscoll, J.);  Ferolito v. Vultaggio, Index Nos. 590967/08, 600396/08, 100568/11 (N.Y.County) (Schulman, J.).   On May 17, 2013 the Supreme Court in the State of New York in the action entitled John M. Ferolito v. Domenick J. Vultaggio et al., Index No. 600396/08 entered an order appointing a Commission to take discovery from Nestle Waters North America, Inc. The Commissioner is addressed to a Connecticut licensed attorney.   All parties agree that Nestle Waters North America, Inc. is not a party to any of the four lawsuits pending in the New York Supreme Court and at all times is a corporation authorized to do business in the State of Connecticut with office at 900 Long Ridge Road, Building 2, Stamford, Connecticut 06902.   Pursuant to the May 17, 2013 Order in Ferolito v. Vultaggio et al., Index No. 600396/08 a Subpoena Duces Tecum was issued by the plaintiff and served on Nestle Waters North America, Inc., in Connecticut on May 20, 2013.   The May 17, 2013 Order and the serviced Subpoena Duces Tecum is before this court. (# 102.00, Exhibit 5.)

The court hereby grants the Motion to Compel Production of Documents from Nestle Waters North America, Inc., dated July 31, 2013. (# 100.1.)

The court orders that the deposition of the Chairman of Nestle Waters North America, Inc., take place pursuant to new Subpoena Duces Tecum and Notice of Deposition.

The plaintiff shall issue and serve a new Notice of Deposition along with a Subpoena Duces Tecum on Kim Jeffrey, Chairman of Nestle Waters North America, Inc. The new Notice of Deposition and Subpoena Duces Tecum shall conform to this court order.   Service on counsel of record will be construed to be sufficient service of both the Notice of Deposition and Subpoena Duces Tecum.

The following Requests for Production (# 102.00, Exhibit 5) shall be complied with subject to the following orders:  1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, and 18.

The production of documents will be limited to all communication to and from Nestle Waters North America, Inc., its agents, employees and/or independent contractors and Beverage Marketing, USA, its agents, employees, stockholders, officers, directors, and/or subsidiary entities, including but not limited to the corporate family of AriZona Iced Tea and other such products, from the period of January 1, 2009 to date.   Said communications shall be produced regardless of the format of said communication.   The communications will be limited to the subject of the evaluation and/or appraisal for all of said AriZona Iced Tea entities.   The internal methods or trade secrets of Nestle Waters North America, Inc., to obtain said evaluations or appraisals shall not be disclosed or produced.

Nestle Waters North America, Inc., shall prepare and submit at the deposition of Kim Jeffrey a Privilege Log in the event any documents are claimed to be protected by either the Attorney–Client privilege or Attorney Work Product doctrine.   The Privilege Log, if any, shall conform to P.B. § 13–3(d), effective January 1, 2014.

No confidentiality order is needed for the documents so produced.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.